Dotcom's lawyers question police statements

KIRSTY JOHNSTON AND IAN STEWARD

Last updated 05:00 27/09/2012

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Kim Dotcom's lawyers have questioned "inconsistencies" by a top police officer.

Evidence given by Detective Inspector Grant Wormald, who oversaw the raid on Dotcom's mansion on January 20, became the subject of defence submissions yesterday after Prime Minister John Key admitted earlier this week that the Government Communications Security Bureau (GCSB) had illegally surveilled Dotcom.

Dotcom's lawyer Paul Davison told the High Court at Auckland yesterday that Mr Wormald had said in evidence on August 9 there was no surveillance of Dotcom undertaken by anyone other than New Zealand police to his knowledge.

However, the GCSB were engaged by police to monitor Dotcom for at least a month before his arrest in January and attended a meeting with police and Crown Law before the raids.

"There are very grave and significant implications arising from this recent discovery," Mr Davison said.

He said it was not the first time Mr Wormald had been "inconsistent" and he had corrected his errors about other aspects of his testimony with an affidavit, but not the one about GCSB involvement.

Outside court, Mr Davison said the inconsistencies were "a matter of real concern".

"We had evidence from an officer on oath and we have some other material which makes it look to be inconsistent with that."

His concerns were backed by Chief High Court Judge Justice Helen Winkelmann who questioned how the bureau could not know Dotcom was a permanent resident - and therefore off-limits as a GCSB target - when his residency was so well-covered by the media.

"It is something I'm concerned about," she said.

The judge said Dotcom was entitled to complain about any illegalities through the court.

Despite concerns over GCSB involvement, Crown lawyer John Pike said they would continue to rely on a ministerial certificate to keep aspects of GCSB-gathered evidence secret.

He said a ministerial certificate signed by Bill English as acting prime minister, which works effectively as a suppression order for national security issues, would still be utilised when a court-appointed senior lawyer reviews the evidence collected by the GCSB.

Dotcom, outside court, questioned the effect of the illegal evidence gathering on his possible prosecution in the United States.

If the GCSB had passed evidence to the US and that formed part of the indictment against him, that evidence could now be "tainted", Dotcom said.

However, Auckland University senior lecturer in criminology, Dr James Olesen, who has worked at the United States Supreme Court, said the US courts could decide to use the evidence as the US had not broken any laws itself.

US courts had allowed the use of illegally gathered evidence - by a vigilante, for example - as long as no official had been involved in gaining the information.

If it was shown that US agents had influenced the GCSB to get evidence, however, the illegal gathering could be considered a product of a "state actor" and could then be declared in violation of the US Constitution.

The extent of the GCSB surveillance of Dotcom, and what was passed to the United States, is not yet known.

Mr Davison said in court it was "likely" there was more material despite police assurances the GCSB only helped to locate the internet mogul and his co-accused.

Mr Davison said the litany of errors and "inconsistencies" by the Crown showed the authorities could not be relied on to provide disclosure for his client. He instead called for all of the information held by the Crown to be handed over without interference.

Justice Winkelmann said the court would appoint a legal specialist to determine whether the information gathered illegally on Kim Dotcom can be given to him.

A hearing would then take place in a closed court between the lawyers involved.